U.S. Department of Education Proposes Ending Ban on Religious Contractors

In its 2017 Trinity Lutheran Church v. Comer decision, the U.S. Supreme Court held religiously affiliated schools cannot be excluded from programs available to other private entities.

The U.S. Department of Education (DOE) is considering ending the exclusion of religious organizations from providing federally funded services to eligible students in private schools.

State and local government education agencies use contractors to provide federally funded “equitable services” for homeless or neglected children in voluntarily participating private institutions. These supplemental activities include tutoring, counseling, and computer-assisted instruction.

The Elementary and Secondary Education Act of 1965 (ESEA) states a third-party contractor must be “independent … of any religious organization.” However, in the 2017 Trinity Lutheran Church v. Comer decision, the U.S. Supreme Court held religiously affiliated schools cannot be excluded from programs available to other private entities.

The contractor ban came from a mistaken view of federal law, says Robert Holland, a senior fellow at The Heartland Institute, which publishes Budget & Tax News.

“The restriction was based on a nonsensical interpretation of the ESEA,” said Holland. “The ban has endured under Democrat and Republican administrations alike, even though it clearly constituted discrimination against high-quality educational vendors solely on the basis of their religious affiliation,” Holland said.

“Secretary DeVos is correct that the Supreme Court’s landmark 7-2 decision in the Trinity Lutheran case plainly established that it is unconstitutional to disqualify an eligible recipient from competition for a public benefit simply because of its religious character,” Holland said.

“If the organizations engaged in proselytizing while doing federal contract work, that could be a violation of the First Amendment’s prohibition of an official establishment of religion,” said Holland. “However, that clearly is not the case here. The Education Department will continue to enforce ESEA stipulations that all contractual educational services must be ‘secular, neutral, and non-ideological.’”

‘This Is a Big Deal’

The potential change in DOE policy, announced by Education Secretary Betsy DeVos at a meeting of state directors for the Council of American Private Education (CAPE) on March 11, was welcomed by Michael Schuttloffel, executive director of CAPE.

“We were very pleased by Secretary DeVos’s statement,” Schuttloffel said to Budget & Tax News. “The old policy, under which faith-based providers were prohibited from providing equitable services to private schools, was deeply unfair and absolutely inconsistent with the Trinity Lutheran decision, not to mention American first principles,” said Schuttloffel.

“By allowing the many outstanding religious providers out there to participate in these programs, the new policy will help private schools across the country, many of whom are on the front lines serving disadvantaged kids,” Schuttloffel said. “This is a big deal for a lot of people.”

“This adds a bit of extra support to the idea that parents should be able to include religious schools among their array of choices under voucher, tax-credit scholarship, or education savings account programs that state governments set up to expand private choice in education,” Holland said.

“The U.S. Supreme Court ruled way back in 2002, in a Cleveland case, that it is constitutional for parents to use vouchers to send their children to religiously affiliated schools so long as the choice-promoting program includes other kinds of schools as well,” said Holland. “A majority of state courts have followed suit.”

DeVos’s action is one of many policy decisions on the state and federal levels that give parents more of a say in their children’s educational options, says Holland.

“I believe this trend is entirely positive, because many families want the academic substance, safety, and moral values they find in private or parochial schools that are all too often lacking in today’s highly standardized and centrally directed public schools,” Holland said.